Excess of Democracy

As JD enrollment falls and non-JD enrollment increases at law schools, leading to a dramatic increase in the percentage of legal education focused on a non-JD student body, it's worth considering what non-JD legal education looks like, where it's going, and what the future may hold. It's a story of some unusual and under-discussed factors that portend a coming reckoning. (And this assumes demand remains fairly strong--recent reports suggest foreign countries may begin to cut back on sending foreign students to the United States for education if a trade war begins, or if immigration and international travel priorities change.)

As I've noted before, one in ten students enrolled in law schools in the United States are not part of a JD program, a number likely to continue to rise:

The American Bar Association defines three categories of non-JD degrees: "academic masters degrees for non-lawyer," "post-JD law degrees for practicing lawyers and/or foreign lawyers seeking to practice in the United States" and "research and academic-based doctorate level degrees." The second category, usually LLM degrees, have historically been the largest contingent (at least according to conventional wisdom), and the first category is among the fastest growing (again, at least according to conventional wisdom).

The ABA does not accredit non-JD programs. Instead, the ABA's task is limited to "acquiescence" of a new program. The ABA offers some rather onerous regulations that schools must meet for the JD program, but they offer no guarantee or review of the non-JD programs, except for very limited purposes:

ABA accreditation does not extend to any program supporting any other degree granted by the law school. Rather the content and requirements of those degrees, such as an LL.M., are created by the law school itself and do not reflect any judgment by the ABA accrediting bodies regarding the quality of the program. Moreover, admission requirements for such programs, particularly with regard to foreign students, vary from school to school, and are not evaluated through the ABA accreditation process. The ABA reviews these degree programs only to determine whether their offering would have an adverse impact on the law school's ability to maintain its accreditation for the JD program. If no adverse impact is indicated, the ABA "acquiesces" in the law school's decision to offer the non-JD program and degree.

I sadly must qualify statements above as "according to conventional wisdom" because, as noted, the ABA does not collect data or evaluate matters like incoming student metrics or outcome performance of non-JD graduates. To do so might be a challenge, of course, given the variety of programs that offer quite different things.

But I'll focus on one particular kind of degree to start: the "post-JD law degree" for "foreign lawyers seeking to practice in the United States." In 2015, there were 6529 bar exam test-takers (including repeaters) who attended law school outside the United States. Virtually all of them (4754, or 73%) took the New York bar. Combined with the 1142 who took the California bar, over 90% took these two states' bar exams.

But note the gap between the ABA and the state bars: the ABA does not actually accredit these programs or "reflect any judgment" "regarding the quality of the program." But the state bars condition foreign graduates to secure a degree at an ABA-accredited school--even if the degree itself is not approved by the ABA.

This, of course, means that any of the typical factors one would consider in an accreditation process--including admissions standards, or quality control measures for graduation, like bar pass rates or employment outcomes--do not exist for such programs. Of course, the Department of Education, or other accrediting bodies, may have other things to say about such programs. But it means that there are two sets of programs operating out of ABA-approved law schools: ABA-approved JD programs, and ABA-"acquiesced" non-JD programs.

If one examines the cumulative bar pass rates of non-US law graduates--most of whom have been required to complete a program at an ABA-accredited law school--and compares them to the pass rates of ABA graduates, the results are quite striking. The overall bar pass rate for ABA graduates has been in decline for several years, drifting down from 74.3% in the February & July administrations in 2011 down to 64.4% for the administrations in 2015. (These test results include all test-takers, including repeaters, those who took multiple states' bar exams, those who were not recent law school graduates, and test-takers in United States territories.) But those who were educated outside of the United States--and almost all of whom secured a degree from a program at an ABA-accredited school--now sit at a meager 28% overall pass rate, a slight decline in recent years. (UPDATE November 19: see below.)

(It might be worth noting that New York's pass rate of 68% is fairly typical of the overall pass rate of 64%, and the 31% New York bar pass rate for non-US law graduates is also fairly typical of the 28% overall pass rate for non-US educated test-takers. That's despite California's lower-than-average bar pass rates being an unusually high component of the non-US law graduate bar exam test-takers.)

Of course, non-US attorneys are still just a sliver of overall bar exam test-takers, particularly because they are concentrated in just two jurisdictions. The chart to the left shows the tota number of test-takers for these categories.

Perhaps, of course, bar pass rates should not be the touchstone for accrediting bodies. And perhaps the incentives are quite different in reviewing such programs.

But it is hard to believe that attention won't shift toward the non-JD market, particularly as it grows in a semi-unregulated fashion. Perhaps the consumer advocacy interests are different from those who are already attorneys in another country seeking to study in the United States, or for non-JD degree-seekers who do not intend to take the bar exam. Only time will tell whether a reckoning is coming.

Display note: I did start the y-axis for non-JD percentage at a non-zero number to avoid excessive white space, but as it displays relative changes in value as a percentage, I think it is not terribly deceptive.

UPDATE November 19: A careful reader wondered about the evidence behind this claim. It's worth referring to a 2014 NCBE "Bar Examiner" report on foreign lawyers who took the New York bar. 75% of them had completed an LLM, and 25% had completed programs abroad that met the New York requirements (e.g., of similar duration and based on English common law). It includes some other breakdowns about the countries of origin of these students and their pass rates based on that country.